Scozzari and Scozzari (No 2)

[2015] FamCA 958

FAMILY COURT OF AUSTRALIA

SCOZZARI & SCOZZARI (NO 2) [2015] FamCA 958

FAMILY LAW – PROCEDURE – Orders discharged – Passports and travel – Costs.

APPLICANT: Ms Scozzari

RESPONDENT: Mr Scozzari

FILE NUMBER: CAC 210 of 2013

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 30 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Bak

SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn

COUNSEL FOR THE RESPONDENT: Mr Thomas

Orders

IT IS NOTED THAT:

1. The father, on 27 July 2015, filed a Notice of Discontinuance in relation to his application that the mother be dealt with for contravention of an order of this Court and noting further that the father in the response filed by him in this matter agreed with the orders sought by the mother about overseas travel contained in Order 3 in her Application filed on 11 June 2015.

IT IS ORDERED THAT:

1. Order 18 of the Orders made on 2 March 2015 be discharged and the following Orders be made in their place:

   (a)       The mother hold the passports for the children:

   (i)S Scozzari, born … 1997 (S)

   (ii)G Scozzari, born … 1999 (G)

   (iii)H Scozzari, born … 2001 (H)

   (iv)B Scozzari, born … 2002 (B); and

   (v)C Scozzari, born … 2008 (C)

   (b)Pursuant to s 65Y(2)(b) of the Family Law Act 1975 the mother be permitted to take the children, or any of the children, out of the Commonwealth of Australia provided that:

   (i)The mother provides the father with copies of return tickets for each of the children at least 21 days prior to the departure;

   (ii)The mother provides the father with a detailed itinerary providing addresses and phone numbers for the accommodation in which the children will be staying at least 21 days prior to departure; and

   (iii)The total duration of the overseas travel does not exceed 42 days.

   (c)The father have liberty to have the matter listed on short notice in the event that the mother does not meet any of the conditions detailed in Order 2.b. above within the specified time frames or the father does not agree to the proposed travel. 

2. The order sought by the mother in Order 4 of her Application filed on that date is dismissed.

3. The father pay a sum as to the costs of the mother in the sum of $1,500 on or before 31 August 2015.

4. The matter is otherwise removed from the pending cases list. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scozzari & Scozzari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 210 of 2013

Ms Scozzari

Applicant

And

Mr Scozzari

Respondent

REASONS FOR JUDGMENT

1. I have listened today to what is really a relatively minor dispute in the overall system of things, given the massive disputes these parties have had over the years and the Application on the part of the mother seeks a variation to the Orders that were made by consent in this Court in as recently as 2 March this year. 

2. I have already read out, in the course of the day, the terms of that Order which were brief in the extreme and which, apparently – and I accept from what has been put to me by Mr Bak – changed an arrangement that had previously existed between the parties in separation until these Orders were made, which was quite some time.

3. No explanation is given and not necessarily required about why the parties reached agreement about an arrangement different from that which had apparently been working.  Although one would think that if the safety of the mother were the concern, then the arrangement that was proposed was more conducive to her safety than is the arrangement that is now proposed or a version to the arrangement that existed before the Consent Orders made in March of this year.

4. The change that the mother seeks is that there will be specific arrangements about the children being returned to her house.  The father, in essence, remaining in his car, the children moving between the house and the car.  Thereby it is suggested minimising any contact between the parents and, therefore, reducing the opportunity for any incidents or further incidents to occur. 

5. I understand the theory.  I do not believe that it is logically supportable from the facts, as they exist, or, indeed, the incident which occurred which gave rise to this proposal for a change.

6. On the father’s part, he simply says he does not want to go back to what would seem to be a much more appropriate and informal arrangement of the children moving between their parents, apparently, without any problem rather than doing so in the glaring lights of a service station on a busy street under camera surveillance so that there is some clear indication that the parents do not trust each other, do not like each other and that the children should be careful of everyone in this situation.  The choice is a Hobson’s choice between a situation which I do not think fulfils the requirement sought by the mother or, for that matter, enhances the arrangements by the father.

7. If I were terribly cynical, I believe that each of the arrangements proposed was done to meet the convenience of the one proposing it.  No one is suggesting that that is the case and it would be unreasonable for me to adopt that view.  However, all things considered, the Orders that were made in March were made but a short time ago.  They were made after the parties had had the opportunity of examining the situation as it had occurred for some years. 

8. They decided, for reasons not disclosed, that they wanted the change that was set out.  It was a matter of agreement.  I note that the father is substantively illiterate and that, therefore, the wording is almost certainly the wording that the mother would have proposed in this situation.  All those factors being taken into account, I am not persuaded that there is any basis for the further litigation between the parties to change the arrangement as it appeared in March and that part of the mother’s application seeking a change to the previous Orders is dismissed. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 30 July 2015.

Associate:

Date:  7 August 2015